In United States v. Sanchez-Gomez, Chief Justice John Roberts wrote today for a unanimous Supreme Court, holding in 12 straightforward pages that a challenge by several criminal defendants to a district-wide policy of shackling pretrial detainees was moot.

The U.S. District Court for the Southern District of California, at the suggestion of the U.S Marshal, adopted a district-wide policy allowing marshals to produce all in-custody pretrial defendants in full five-point restraints for most nonjury proceedings. In full restraints, a defendant’s hands are closely handcuffed together, these handcuffs are connected by a chain to another chain running around the defendant’s waist, and the defendant’s feet are shackled and chained together. Four defendants challenged the constitutional validity of their shackling and of the policy as a whole. They argued that they were bringing the challenges on behalf of themselves and similarly situated defendants. The district court denied their challenges. While the cases were on appeal to the U.S. Court of Appeals for the 9th Circuit, the four prosecutions were resolved, either via guilty plea or dismissal.

The question for the Supreme Court was whether resolution of the four prosecutions eliminated any live controversy, rendering the dispute moot. In concluding that the case was moot, the court rejected the 9th Circuit’s recognition of “class-like claims” as a means to avoid mootness absent certification of an actual class under Federal Rule of Civil Procedure 23. The court also rejected the respondents’ argument that the controversy was not moot because it was “capable of repetition yet evading review.”

Precedents such as Gerstein v. Pugh and Sosna v. Iowa establish that plaintiffs in class actions can avoid mootness when the named plaintiffs’ claims become moot, because the unnamed class members still have their personal stakes in the matter, retaining a live controversy with the defendants. But the Supreme Court declined to endorse the 9th Circuit’s creation of a “freestanding exception to mootness outside the class action context.” The class action is a unique device, a product of the Federal Rules and an exception to the “usual rule that litigation is conduct by and on behalf of the individual named parties only.” A certified class “acquires a legal status separate from the interest asserted by the named plaintiff” and the class’ “independent legal status” is essential to avoiding mootness. But no similar mechanism applies in this case. This was not a civil action, so there was no class certification. The Federal Rules of Criminal Procedure do not provide a litigation vehicle comparable to the class action, and federal courts lack power to “create de facto class actions at will.” That the respondents purported to seek relief for all in-custody defendants in the district did not create a “functional class action.” A case does not escape mootness because the claims of the parties might, if resolved in some way, benefit other similarly situated individuals.

The 9th Circuit also could not keep the action alive by casting the appeal as an exercise of supervisory mandamus, the courts of appeals’ authority to supervise and control district courts through discretionary writs of mandamus. Whatever the scope of supervisory mandamus, the power requires live controversies and does not exempt cases from normal mootness rules.

The respondents argued that their claims remained alive as a controversy that was capable of repetition yet evading review. This exception to the regular rules of mootness applies when litigation (including appeals) cannot be concluded before the challenged action ends of its own force and there is a “reasonable expectation that the same complaining party will be subjected to the same action again.” The respondents argued that they met the second part of this test because the two who had been charged with unlawfully entering the United States had violated the law again by re-entering unlawfully, something the crime’s high recidivism rate suggested was reasonably likely to occur. Once unlawfully in the United States, they would likely be arrested and returned to pretrial custody, where they again would be subjected to the shackling policy. But the Supreme Court “refused to ‘conclude that the case-or-controversy requirement is satisfied by’ the possibility that a party ‘will be prosecuted for violating valid criminal laws.’” In past cases, the court has “‘assume[d] that [litigants] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct.’”

The court rejected the respondents’ reliance on two cases in which it applied the capable-of-repetition exception to mootness — a disabled student’s challenge to his unilateral suspension from school, when his inability to control his behavior made future misconduct and unilateral suspension reasonably likely to occur, and an indigent civil litigant’s challenge to contempt citations for failure to pay child support, when his steep arrearages (more than $13,000) and looming hearing (five months away) “destined” him to be held in contempt again. In both civil cases, the court reasoned, litigants were unable “for reasons beyond their control, to prevent themselves from transgressing and avoid recurrence of the challenged conduct.” The respondents, on the other hand, “are ‘able—and indeed required by law’—to refrain from further criminal conduct.” That they have an incentive to break the law by unlawfully returning to the United States, and that they are statistically likely to do so, “do not amount to an inability to obey the law.”

The court concluded by acknowledging a point made during oral argument: There are other avenues to challenge the shackling policy, notably a civil action for injunctive relief, including a class action that would allow detainee-plaintiffs to avoid similar mootness problems.

[NOTE: This post will be updated with additional analysis later in the day.]

The Fourth Amendment protects us from (among other things) a warrantless search of a place – such as our homes – that we can reasonably expect to remain private. Today the Supreme Court ruled that a driver who has permission to use a rental car is generally entitled to the same protections under the Fourth Amendment as the driver who rented the car.

The court’s decision came in the case of Terrence Byrd, a New Jersey man who was driving a car rented by his fiancée (or former girlfriend, depending on whose account you are reading) when he was pulled over by a state trooper in Pennsylvania. The trooper gave him a warning for driving in the left lane and then searched the car, believing that he didn’t need Byrd’s consent because Byrd was not listed as an authorized driver on the rental agreement. The troopers found body armor and 49 bricks of heroin in the trunk, leading to federal charges against Byrd.

After the trial court rejected his argument that the heroin and body armor could not be introduced as evidence because the trooper lacked probable cause to search the trunk, Byrd pleaded guilty and was sentenced to 10 years in prison. The U.S. Court of Appeals for the 3rd Circuit upheld his conviction, but today the Supreme Court reversed.

In a unanimous decision by Justice Anthony Kennedy, the justices rejected the federal government’s argument that a driver who is not listed on the rental agreement can never have a reasonable expectation of privacy in the car, because the rental company has not given him permission to use it. That rule, the justices concluded, “rests on too restrictive a view of the Fourth Amendment’s protections.” Under the Supreme Court’s cases, the justices explained, whether someone has an expectation of privacy in a car shouldn’t hinge on whether the person who gave them permission to drive it owns the car or rented it.

After today’s decision, Byrd is not entirely in the clear. The justices vacated the 3rd Circuit’s ruling but sent the case back for the lower courts to consider whether the government could prevail on two other grounds: whether Byrd still would not have any expectation of privacy because he used his significant other to mislead the rental company, knowing that he wouldn’t be able to rent the car himself because of his prior criminal record; and whether – putting everything else aside – the police had probable cause to search the car because they believed it contained evidence of a crime.

[NOTE: This post will be updated with additional analysis later in the day.]

This morning the Supreme Court overturned a Louisiana inmate’s death sentence because the inmate’s lawyer – hoping to save his client’s life – had told the jury that the inmate was guilty, even though the inmate had expressly objected to that strategy. The 6-3 ruling reiterated that the Constitution gives a criminal defendant the fundamental right to make decisions about his defense and therefore bars a defense lawyer from going against his client’s instructions, even when the lawyer’s defense strategy might seem perfectly reasonable.

The decision came in the case of Robert McCoy, who in 2011 was on trial for the shooting deaths of his estranged wife’s son, mother and stepfather. McCoy clashed with his public defenders, so his parents hired a private attorney, Larry English, to represent him. McCoy insisted that he was innocent and was being framed in retaliation for revealing that local police were involved in a drug ring, but English believed that the evidence against his client was “overwhelming.” So English first encouraged McCoy to plead guilty in exchange for a life sentence; as McCoy’s trial approached, English told McCoy that he planned to tell the jury that McCoy had committed all three murders, in the hope that doing so would convince the jury to sentence McCoy to life in prison, rather than death. McCoy was furious, but English went ahead with his plan, telling the jury that McCoy was “crazy” and “lives in a fantasy world.”

English’s strategy failed: The jury found McCoy guilty of first-degree murder and sentenced him to death. State courts in Louisiana upheld McCoy’s conviction and death sentence, rejecting his argument that English’s decision to admit McCoy’s guilt, despite McCoy’s objections, violated the Constitution. Today the Supreme Court, in a relatively brief (13-page) decision by Justice Ruth Bader Ginsburg, ordered the Louisiana courts to give McCoy a new trial.

The majority explained that even when a defendant is represented by an attorney, he does not give up all control over his case to the attorney. A criminal defendant’s lawyer may be responsible for what the court described as “trial management” – for example, what evidence to object to and what arguments to pursue – but the defendant himself has the sole right to make some decisions, such as whether to plead guilty or to waive the right to a jury trial. The decision to maintain one’s innocence, the court reasoned, falls within the category of decisions reserved for the defendant: If the defendant tells his attorney that “the objective of ‘his defence’ is to maintain innocence of the charged criminal acts,” the court continued, the attorney must follow that instruction and cannot “override it by conceding guilt.” This means, the majority concluded, that once English knew that McCoy objected to his proposed strategy of admitting McCoy’s guilt to the jury, it was not English’s place to override McCoy’s objection.

[NOTE: This post will be updated with additional analysis later in the day.]

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. Today the justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine. Their decision not only opens the door for states around the country to allow sports betting, but it also could give significantly more power to states generally, on issues ranging from the decriminalization of marijuana to sanctuary cities.

The federal law at issue in the case is the Professional and Amateur Sports Protection Act, which dates back to 1992. The law, known as PASPA, bans most states from (among other things) authorizing sports gambling; it carved out an exception that would have permitted New Jersey to set up a sports-betting scheme in the state’s casinos, as long as the state did so within a year. But it took New Jersey 20 years to act: In 2012, the state legislature passed a law that legalized sports betting.

Justice Alito delivers opinion in Murphy v. NCAA (Art Lien)

The National Collegiate Athletic Association and the four major professional sports leagues went to court, arguing that the 2012 law violated PASPA. The lower federal courts agreed, prompting the New Jersey legislature to go back to the drawing board. In 2014, it passed a new law that rolled back existing bans on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and the leagues returned to court, arguing that the new law also violated PASPA, and the U.S. Court of Appeals for the 3rd Circuit again ruled against the state.

The Supreme Court agreed to consider the state’s constitutional challenge to PASPA, and today the court reversed. It explained that the PASPA provision that bars states from authorizing sports gambling violates the anti-commandeering doctrine because it “unequivocally dictates what a state legislature may and may not do.” “It is as if,” Justice Samuel Alito wrote for the majority, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

The majority acknowledged that the question of whether to legalize sports gambling “is a controversial one” that “requires an important policy choice.” But that choice, the majority continued, “is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.”

New Jersey has long hoped that allowing sports betting would revive the state’s struggling racetracks and casinos. In March of this year, ESPN projected that if New Jersey were to win, the state could have legal sports betting by the time football season kicks off in the fall; nearly two dozen other states are also considering bills that would allow sports betting. The economic impact of allowing sports betting cannot be understated: Legal sports betting in Las Vegas takes in over $5 billion each year, and most estimates put the value of illegal sports betting in the United States at up to $100 billion.

Today’s ruling could also have a much broader reach, potentially affecting a range of topics that bear little resemblance to sports betting. For example, supporters of so-called “sanctuary cities” – cities that refuse to cooperate with federal immigration officials to enforce immigration laws – have cited the 10th Amendment in recent challenges to the federal government’s efforts to implement conditions on grants for state and local law enforcement. Challenges to the federal government’s recent efforts to enforce federal marijuana laws in states that have legalized the drug for either recreational or medical use may also be based on the 10th Amendment.

This morning the justices issued orders from their private conference last week. They added three new cases to their docket for next fall, but once again did not act on the government’s petition to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for an undocumented pregnant teenager to obtain an abortion.

In the first case granted today, Frank v. Gaos, the justices agreed to weigh in on the use in class-action cases of an ancient legal doctrine known as cy pres. The doctrine – whose name comes from a French phrase that means “as close as possible” – gives courts the power to interpret a will or a charitable gift to implement the giver’s intent when it is impossible to carry out the terms as they are written. In recent years, some courts in the United States have applied the cy pres doctrine to distribute to charity the proceeds of a class-action settlement that have not been claimed by class members, usually because the award to each person is relatively small. Giving the funds to charity, the thinking goes, is better than allowing the defendants to keep the unclaimed funds, which would reduce the deterrent value of the lawsuits.

But others have objected to the use of the cy pres doctrine for class actions, suggesting (among other things) that the settlements should not transfer money to charities and nonprofits that have not been injured by the conduct that sparked the lawsuit. Cy pres settlements of class actions also create potential conflicts of interest for both the lawyers and the judges who select the recipients of the funds, opponents say. One such skeptic may be Chief Justice John Roberts, who in 2013 suggested that the Supreme Court “may need to clarify the limits of the use of” cy pres remedies.

Today the court agreed to do so, in a case challenging the $8.5-million settlement of a class action brought against Google, which alleged that the search engine had violated its users’ privacy by disclosing their search terms to other websites. Approximately $2 million of the settlement went to the lawyers for the plaintiffs, and the named plaintiffs themselves received a few thousand dollars each. But the remainder of the settlement – approximately $5 million – went to groups that work on privacy-related issues, including the World Privacy Forum and the alma maters of the plaintiffs’ lawyers.

Ted Frank, a well-known attorney who frequently challenges class-action settlements, objected to the Google settlement, but the district court approved it over his objections. The U.S. Court of Appeals for the 9th Circuit affirmed, explaining that district courts can approve cy pres settlements of class actions as long as they are “fair, adequate, and free from collusion.” The justices will now review that ruling.

Eight years ago, the Supreme Court ruled that courts could not require class arbitrations unless there was a “contractual basis” to believe that both parties had agreed to such proceedings. In Lamps Plus, Inc. v. Varela, the justices will review a dispute that arose when Frank Varela, a Lamps Plus employee, tried to file a class action in California, alleging that a data breach at the company had broken various state laws. Lamps Plus asked the court to require Varela to arbitrate his claims individually, but a panel of the U.S. Court of Appeals for the 9th Circuit – including Judge Stephen Reinhardt, who died in late March – disagreed. It pointed to language in an arbitration agreement that Varela had signed, which indicated (among other things) that “arbitration shall be in lieu of any and all lawsuits,” to support its conclusion that there was a “contractual basis” for class arbitration.

Lamps Plus asked the Supreme Court to weigh in, telling the justices that the 9th Circuit’s ruling was a “palpable evasion” of their earlier decision. Moreover, it added, the language on which the 9th Circuit relied to find a “contractual basis” for class arbitration is standard fare in many arbitration agreements. If the lower court’s ruling is allowed to stand, the company warned, it will open the door for the 9th Circuit and other courts to “impose class arbitration on parties that never agreed to it.”

And in the third case granted today, Bucklew v. Precythe, the justices will review a challenge by death-row inmate Russell Bucklew to his execution, which had been scheduled for March. The justices put that execution on hold to give them time to consider Bucklew’s petition for review, which they granted today.

Bucklew told the justices that allowing the state to execute him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat.” If he has trouble breathing when the execution begins, Bucklew contends, the tumor in his throat could rupture, filling his mouth and airway with blood – resulting in an execution that would likely be “gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection.”

Bucklew asked the justices to rule on three different questions related to the state’s plan to execute him by lethal injection, including whether courts should assume that the medical personnel overseeing the execution will be able to manage his condition. Today the justices agreed to take his case and instructed both Bucklew and the state to address a fourth question as well: Whether Bucklew has made the showings that the court’s lethal-injection precedent requires regarding the procedures that would be used to execute him by the alternative method that he has proposed – the gas chamber – and the kind of pain that execution by lethal gas, compared with lethal injection, would cause.

The court once again did not act on Azar v. Garza, the case involving the undocumented teenager who was allowed to obtain an abortion. The justices have considered the government’s petition, which was filed in early November, at 11 conferences this year, with six of those conferences coming since the justices received the lower-court records in the case.

The justices are not scheduled to hold a conference this week; the next conference is scheduled for May 10. Orders from that conference are likely to follow on Monday, May 14.

The second of yesterday’s two patent decisions was SAS Institute v. Iancu. As I explained in my post about Oil States Energy Services v. Greene’s Energy Group, both cases involve the process for “inter partes review” that Congress added to the Patent Act in 2012, a process under which a competitor (or, for that matter, anyone at all) can ask the director of the Patent and Trademark Office to reconsider a previously issued patent. If the director agrees to reconsider the patent, the Patent Trial and Appeal Board then conducts a trial-like proceeding adjudicating the validity of the patent. The Supreme Court held yesterday in Oil States that Article III permits Congress to allocate that responsibility to an executive agency rather than an Article III court. This decision, though, invalidates a major part of the administrative rules under which the board has been conducting those reviews.

The specific topic before the court in SAS is the board’s practice of instituting a “partial” inter partes review, agreeing to review some but not all of the challenged claims of a patent. Commonly (as in this case), challengers file petitions that allege defects with all or substantially all of the claims in an issued patent. Seeking to allocate its adjudicative resources more efficiently, the board routinely agrees only to review the claims it finds substantial. At about the same time as it rejected constitutional challenges to the entire process, the U.S. Court of Appeals for the Federal Circuit approved the process for “partial” inter partes review. The justices, though, reject that process as wholly inconsistent with the statutory design. Notably, Justice Neil Gorsuch (who dissented sternly in Oil States) writes for a narrow 5-4 majority, over dissenting votes by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan (all of whom joined the majority in Oil States).

Gorsuch’s majority opinion does two things. The first is the less interesting – a workmanlike explanation of the reasons that persuade the majority that the partial-review process is not consistent with the best reading of the statute. To that end, Gorsuch starts by emphasizing the statute’s command that the board “shall issue a final written decision with respect to the patentability of any patent claim challenged by the petitioner.” Liberally sprinkling citations that I can omit here, he explains: “This directive is both mandatory and comprehensive. The word ‘shall’ generally imposes a nondiscretionary duty. And the word ‘any’ naturally carries ‘an expansive meaning.’ … So when [the statute] says the Board’s written decision ‘shall’ resolve the patentability of ‘any patent claim challenged by the petitioner,’ it means the Board must address every claim the petitioner has challenged.”

Gorsuch buttresses that reading of the provision with a discussion of the statute’s structure, which contemplates a proceeding guided by the petitioner rather than the director:

This language doesn’t authorize the Director to start proceedings on his own initiative. … Instead, the statute envisions that a petitioner will seek an inter partes review … guided by a petitioner describing “each claim challenged.” … From the outset, we see that Congress chose to structure a process in which it’s the petitioner, not the Director, who gets to define the contours of the proceeding.

Similarly, the statute only authorizes the director to decide “whether to institute … review … pursuant to a petition.” For Gorsuch, the “language indicates a binary choice – either institute review or don’t. And by using the term ‘pursuant to,’ Congress told the Director what he must say yes or not to: an inter partes review that proceeds “'[i]n accordance with’ or ‘in conformance to’ the petition” (quoting definitions of “pursuant to” from the Oxford English Dictionary). Again, Gorsuch suggests that it would make no sense for the statute to require the patentholder to respond “to the petition” filed by the challenger if Congress expected the director to decide the scope of the proceeding; the statute would call for a response to the director’s institution notice.

Gorsuch is similarly unpersuaded by the director’s “attempts [at] a policy argument … that partial institution is efficient because it permits the Board to focus on the most promising challenges and avoid spending time and resources on others.” Gorsuch notes the competing arguments about institutional design from the challenger and briskly washes his hands of the matter: “Each side offers plausible reasons why its approach might make for the more efficient policy. But who should win that debate isn’t our call to make. Policy arguments are properly addressed to Congress, not this Court.”

The second thing the opinion does is far more interesting: It explains why the statute is not sufficiently ambiguous to warrant deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., which requires courts to defer to reasonable agency interpretations of ambiguous statutes. Remarkably, Gorsuch starts by noting SAS Institute’s bold suggestion that the Supreme Court abandon Chevron entirely. What Gorsuch does not do is dismiss the suggestion out of hand; indeed, he goes so far as to offer a citation to a well-regarded pre-Chevron opinion of Judge Henry Friendly explaining that “the meaning of a statutory term” is more suited for “judicial [rather than] administrative judgment.” Gorsuch then suggests that “whether Chevron should remain is a question we may leave for another day.” Falling back on the statutory analysis summarized above, Gorsuch can close by asserting that “[t]he statutory provisions before us deliver unmistakable commands,” leaving “no room in this scheme for a wholly unmentioned ‘partial institution’ power that lets the Director select only some challenged claims for decision.”

On the credibility of that discussion, suffice it to say that Breyer’s dissent (joined by Ginsburg, Sotomayor and Kagan) reads the ambiguity question quite differently. For the dissenters, the majority amends the statute to require adjudication of “‘any patent claim challenged by the petitioner’ in the petitioner’s original petition,” when the agency reasonably read the statute to require adjudication of “‘any patent claim challenged by the petitioner’ … ‘in the inter partes review proceeding.’”

If Sessions v. Dimaya, decided last week, and Oil States had not persuaded us, Gorsuch’s opinion here stakes out his position as the court’s leading skeptic of the administrative state. As I suggested in my post on Oil States yesterday, we can expect more on that front during the remaining weeks of the term.

This morning brought decisions in both of the patent cases argued in November, with the government prevailing on the constitutional question raised in Oil States Energy Services v. Greene’s Energy Group, but losing on the statutory question presented in SAS Institute v. Iancu. Both cases involve the process of inter partes review added to the Patent Act in 2012 as part of the Leahy-Smith America Invents Act. That process authorizes a petition for inter partes review by any competitor that believes that the Patent and Trademark Office erred in issuing a patent on an invention that already existed in prior art. If the PTO determines (in its sole discretion) that the petition has merit, it institutes a trial-like review process that can result, if successful, in amendment or invalidation of the patent, subject to review in the U. S. Court of Appeals for the Federal Circuit.

The question before the justices is whether the adjudication of those petitions by an administrative body (the Patent Trial and Appeal Board) is an exercise of the “judicial power” that under Article III of the Constitution can be exercised only by the federal courts. If it seems fanciful to suppose at this late date that the Constitution could invalidate such a seemingly innocuous administrative process, consider the example of the Bankruptcy Code, provisions of which have been invalidated for intrusions on Article III twice since its initial adoption in 1978.

As it happens, though, inter partes review found a more sympathetic audience than some of Congress’ earlier innovations. Writing for seven of the justices (all but Chief Justice John Roberts and Justice Neil Gorsuch), Justice Clarence Thomas took a straight and simple route to upholding the statute. Sidestepping the longstanding dissatisfaction with the court’s distinction between “public rights” and “private rights,” Thomas set the dispute directly within that framework, which gives Congress “significant latitude to assign adjudication of public rights to entities other than Article III courts.” Quoting the two cases that invalidated provisions of the Bankruptcy Code, Thomas acknowledged that the “Court has not ‘definitively explained’ the distinction between public and private rights,” and that “its precedents applying the public-rights doctrine have ‘not been entirely consistent.’” Still, he says, the framework is adequate for this case because it so clearly involves a public right – “reconsideration of the Government’s decision to grant a public franchise.”

Thomas divides the problem into two steps, first explaining why “the decision to grant a patent is matter involving public rights.” Once he establishes that point, he can argue that, because “[i]nter partes review is simply a reconsideration of that grant, … Congress has permissibly reserved the PTO’s authority to conduct that reconsideration.”

Two key points support the view that patents are matters of purely “public right.” The first is the notion, illustrated by quotations from earlier cases, that the patent is a “creature of statute law” that “take[s] from the public rights of immense value, and bestow[s] them upon the patentee.” The second is that the Constitution explicitly allocates to Congress the power to “promote the Progress of Science and useful Arts” by granting patents; Congress’ decision to authorize the executive branch to grant patents is thus a constitutionally sanctioned delineation of “the executive power,” something which “need not be adjudicated in an Article III court.”

The bigger hurdle is the second step, explaining why the trial-like process in which one competitor persuades the PTO to invalidate a patent is similarly “executive.” On that point, Thomas explains that because its purpose is to ensure that “patent monopolies are kept within their legitimate scope, … inter partes review involves the same interests as the determination to grant a patent in the first instance.” Thomas analogizes the patent to a franchise “to erect a toll bridge” or “to build railroads or telegraph lines,” as to which it has long been held that Congress can “qualify the grant by reserving its authority to revoke or amend the franchise … through legislation or an administrative proceeding.”

Thomas acknowledges a set of 19th-century cases in which the Supreme Court explained not only that “[t]he only authority competent to set a patent aside, or to annul it … is vested in the courts of the United States, and not in the department which issued the patent,” but also that administrative invalidation would “deprive the applicant of his property without due process of law, and would be in fact an invasion of the judicial branch.” Although those quotations might sound pretty persuasive at first reading, Thomas dismisses them as irrelevant in the modern context, “best read as a description of the statutory scheme that existed at that time” and shedding no light on “Congress’ authority under the Constitution to establish a different scheme.”

Given his interest in historical arguments, it will surprise nobody that Thomas gives extended attention to the argument that adjudication of the validity of an issued patent is “judicial” because those disputes ordinarily were resolved by a suit at common law in the English courts of the 18th century. Acknowledging the routine nature of judicial attention to patent litigation, though, “does not establish that patent validity is a matter that, from its nature, must be decided by a court.” The key point for Thomas is that “there was another means of canceling a patent in 18th-century England, which more closely resembles inter partes review: a petition to the Privy Council to vacate a patent.” English patents were subject at the time of the framing to validation by the Privy Council – admittedly a branch of the executive. Thomas therefore argues that “it was well understood at the founding that a patent system could include a practice of granting patents subject to potential cancellation in the executive proceedings of the Privy Council.” Because “nothing in the text or history of the Patent Clause or Article III … suggest[s] that the Framers were not aware of this common practice,” Thomas concludes that the Privy Council practice is enough to validate inter partes review.

It is remarkable that Thomas managed to secure seven votes for his entire opinion. Sharp divisions marked previous cases in the area, several of which were decided without any single majority opinion. The strong majority here could go a long way to establishing the public-right/private-right distinction – however incoherent it seems to the outsider – as a firm boundary delineating areas plainly within congressional control.

Having said that, the opinions as a whole do display a considerable divergence of viewpoint among the justices. First, three of the justices (Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor) suggest that they would go much further in tolerating administrative innovation, emphasizing that the Supreme Court’s opinion says nothing about procedures in which “private rights” are “adjudicated [outside] Article III courts … by agencies.” For that group, sympathetic to the efficiencies of the administrative state, the distinction between public rights and private rights is not a useful way to identify limits on congressional power, though they are happy to use it as a way to define plainly permissible processes.

The most notable writing, though, is on the other side of the matter — a powerful dissent from Gorsuch, joined by Roberts. For Gorsuch, the “efficient scheme” that Congress has designed, however “well intended,” is an unacceptable “retreat from the promise of judicial independence.” Although the opening paragraphs of his opinion mention in passing some of the administrative abuses that have plagued inter partes review (such as the decision by the director to “pack” panels with favorable judges), he rests the weight of his analysis on his reading of the English history.

For Gorsuch, the point of Privy Council review is that executive review was fading away by the time of the Constitution’s framing, with the last actual invalidation occurring in 1746. Gorsuch portrays a progression from the early understanding of patents as “feudal favors” involving “the exclusive right to do very ordinary things, like operate a toll bridge or run a tavern” to a modern understanding of “invention patents … as a procompetitive means to secure to individuals the fruits of their labors and ingenuity.” Offering a remarkable paean to the value of strong protections of intellectual property, Gorsuch argues that the shift toward patents as the earned fruit of “a contract between the crown and the patentee” brought with it a shift toward purely judicial adjudication, coinciding with the “dying gasp” of the Privy Council’s authority in this area.

Having drawn such a firm distinction between “invention patents” and the patronage-like grants of franchises, Gorsuch is particularly critical of the majority’s reliance on cases sanctioning administrative limitations on franchises. For him the better analogy is the land patent – creating a right in real estate that could not exist without the grant from the sovereign. As he points out, courts always have held that the invalidation of interests in land, even when granted by the sovereign, necessarily involves an exercise of the judicial power. He sees no reason to treat invention patents any differently, and thus would reject the scheme for inter partes review as an intolerable incursion on the judicial power. He closes with a characteristically rhetorical flair, ornamented by a quote from the Federalist Papers: “[T]he loss of the right to an independent judge is never a small thing. It’s for that reason Hamilton warned the judiciary to take ‘all possible care … to defend itself against’ intrusions by the other branches.”

Paired with his concurrence last week in Sessions v. Dimaya (to say nothing of his majority opinion in SAS also issued yesterday), Gorsuch’s dissent begins to reveal his deep-seated skepticism about the propriety and utility of the administrative state. Coming hard on the heels of Monday’s argument in Lucia v. Securities and Exchange Commission, these opinions suggest that Gorsuch will not be eager to uphold the appointment practices challenged there.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case. The author of this post, however, is not affiliated with the firm.]

Nearly seven years ago, the Supreme Court agreed to decide whether corporations can be sued under the Alien Tort Statute, an 18th-century law that allows foreigners to bring lawsuits in U.S. courts for serious violations of international human-rights laws. The justices ultimately did not resolve the corporate liability question in that case, ruling instead that claims cannot normally be brought under the ATS based on conduct that occurred in another country. But today they did settle the issue, holding by a vote of 5-4 that foreign corporations may not be sued under the ATS. The decision will almost certainly put a halt to efforts, often controversial, by foreign plaintiffs to hold foreign corporations responsible in U.S. courts for human rights violations abroad.

The case decided today, Jesner v. Arab Bank, was filed in the United States by victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank and Gaza. They allege that the bank kept accounts for known terrorists, accepted donations that it knew would be used to fund terrorism and distributed millions of dollars to families of suicide bombers. The victims relied on the Alien Tort Statute, a federal law that gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The U.S. Court of Appeals for the 2nd Circuit dismissed the victims’ case, holding that the ATS does not allow lawsuits against corporations, and today the Supreme Court affirmed.

Justice Anthony Kennedy wrote for the majority, in a decision that splintered along ideological lines. The court emphasized that when Congress enacted the ATS, its primary goal was to avoid foreign-relations problems by making sure that federal courts were available to review lawsuits by foreign nationals alleging violations of international law “where the failure to provide one might cause another nation to hold the United States responsible for an injury to a foreign citizen.” But in this case and others, the court continued, allowing a lawsuit to go forward in U.S. courts was having precisely the opposite effect, creating “significant diplomatic tensions with Jordan, a critical ally in one of the world’s most sensitive regions.” Moreover, the justices added, the court should generally refrain from creating or extending new grounds for lawsuits, especially when dealing with a subject, like the ATS, that may create foreign-policy concerns and is therefore more properly dealt with by Congress and the executive branch.

Even as the court’s five more conservative justices agreed that the lawsuit against Arab Bank should be thrown out, they did not always agree on the reasoning. Justice Neil Gorsuch, in particular, would have gone even further than his colleagues and ruled that one foreign national cannot sue another under the ATS; at a minimum, he believes, lawsuits under the ATS should require a U.S. defendant. Gorsuch stressed that “the decision to impose sanctions in disputes between foreigners over international norms” belongs to Congress and the president, rather than the courts. “If they wish our help,” Gorsuch concluded, “they are free to enlist it, but we should not ever be in the business of elbowing our way in.”

Justice Sonia Sotomayor filed a 34-page dissent, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Sotomayor castigated her colleagues for absolving “corporations from responsibility under the ATS for conscience-shocking behavior.” On the one hand, Sotomayor wrote, the text, history and purpose of the ATS all support the idea that corporations can be sued under the law. By contrast, she continued, there are less drastic ways to address the foreign-policy concerns voiced by the court. For example, there is a presumption that U.S. law does not apply outside the United States. Alternatively, a court could determine that a foreign plaintiff must first try to sue a foreign corporation in her home country. Instead, Sotomayor complained, the court “prefers to use a sledgehammer to crack a nut.” And although the court suggests that Congress and the executive branch are better suited to consider the foreign-policy implications of holding a foreign corporation liable under the ATS, she observed, both the U.S. solicitor general and members of Congress have nonetheless urged the Supreme Court to hold that corporations can be held liable. With today’s ruling, she concluded, “the Court ensures that foreign corporations—entities capable of wrongdoing under our domestic law—remain immune from liability for human rights abuses, however egregious they may be.”

Pereira v. Sessions, which was argued yesterday morning, implicates two questions, one narrow and one broad. The narrow question is a basic one of statutory interpretation. Under the Immigration and Nationality Act, ten years of continuous physical presence, along with certain other factors, must be accrued before immigrants lacking two or more years of lawful residence, and otherwise removable, can qualify for a discretionary form of relief from removal known as “cancellation of removal.” The statute states that when the government issues a “notice to appear” for removal proceedings, the NTA stops the accrual of an immigrant’s ten years of “continuous physical presence.” The statutory question at issue is whether the NTA must comply with all of the requirements of a cross-referenced statutory provision in order to stop the clock on continuous physical presence. The broader question implicates Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., which requires courts to defer to reasonable agency interpretations of ambiguous statutes.

David Zimmer argued on behalf of the petitioner, Wescley Pereira. Zimmer asserted that when, in referring to the NTA, the cancellation provision of the Immigration and Nationality Act cross-references Section 1229(a), the statute “defines a Notice to Appear as a notice that provides specific information, including the time and place at which the proceeding will be held.” Because the NTA that the government served on Pereira lacked that information, Zimmer contended that it was not an NTA within the meaning of the cancellation provision and did not stop the clock on Pereira’s accrual of continuous physical presence. When pressed by Justices Elena Kagan and Ruth Bader Ginsburg on this point throughout the argument, Zimmer insisted that all of the statutorily-detailed components of the NTA in Section 1229(a)(1) needed to be in the NTA, although he noted that, as a practical matter, the elements that are most likely to be at issue are the time and date of the hearing and the grounds of removal charged by the government. Justice Samuel Alito asked whether the statute was “so clear that it wouldn’t be necessary for us to go beyond step one of Chevron.” Zimmer responded that “when Congress states that the document ‘in this section referred to as’ a Notice to Appear is written notice that specifies that information, that means that if … written notice does not specify that information, it has not” served as an NTA. Additionally, as Zimmer later remarked, “[I]t’s hard to see that it could be a Notice to Appear when it didn’t actually tell Mr. Pereira when to appear and when to do anything.”

Justice Sonia Sotomayor pressed Zimmer further, asking whether the statute might not be ambiguous because it refers to an NTA “under section 1229(a)” rather than, for example, “notice in accordance with” Section 1229(a)(1). Zimmer resisted the notion that this phrasing generated ambiguity, arguing that the meaning is clear because the NTA is a defined term and the definition is provided in Section 1229(a). He also maintained that, even if the Supreme Court were to find ambiguity, deference to the Board of Immigration Appeals’ interpretation of the provision was not required in this case.

Alito, Chief Justice John Roberts and Justice Neil Gorsuch seemed puzzled as to why it matters whether the date of the hearing is provided. Why is a blank NTA not effective for stopping the clock but a completed NTA with a later-amended hearing date is? As Zimmer noted, “[T]he government’s interpretation [not requiring the inclusion of the listed elements of Section 1229(a) to stop the continuous-physical-presence clock] would allow the government to end time, to trigger the stop time rule, long before it really has the intent of going forward [with removal proceedings].” He maintained that Pereira’s interpretation avoids this problem.

Fredrick Liu represented the government. Right out of the gate, his argument was greeted with skepticism not only by Sotomayor, but also by Gorsuch, who seemed troubled by the many ways the agency was defining an NTA without any accompanying support in the text of the statute. “How is it that under [one of the Board’s precedential cases, Ordaz], a Notice to Appear isn’t a Notice to Appear … if it’s not filed, as Justice Sotomayor points out? An extra-statutory requirement that … I don’t see in the … language of the statute. Maybe you can tell me where to find it?” Liu could not.

Gorsuch continued, “[W]hat is the definition of a Notice to Appear? It doesn’t have to have a date. It doesn’t have to have a time. Does it have to have the charges? Does it have to have the facts? I mean, at what point does the emperor have no clothes? At what point?” Liu argued that the NTA would need to contain the basis of removability, but not necessarily the time of the hearing. Gorsuch pushed back, noting that there is no statutory basis for this distinction. Liu outlined the components of Section 1229(a)(1) that would, in his view, fulfill the “essential function of a charging document,” pointing out that the date and time of the hearing were not on that list, to which Gorsuch parried, “Doesn’t Congress get to decide what’s the essential function of a charging document?” Kagan then took the baton and pursued a similar line of questioning, seemingly undeterred by Liu’s efforts to argue that subsequently enacted legislation revealed congressional intent consistent with his interpretation.

In an exchange with Liu that was at times testy, Justice Stephen Breyer also expressed skepticism over the government’s argument. After hearing Liu explain why the statute did not require unambiguously information regarding the time and date of the hearing (but did require other elements), Breyer said, “that seems odd, but assume you’re right. We then get to step 2 of Chevron, and step 2 says that the agency decision has to be reasonable. So I look for the reason. What’s the reason …?” Breyer took issue with the government’s argument that providing the hearing date and time in the NTA would be too administratively difficult. (Indeed, there was a good deal of discussion throughout the argument as to whether the inclusion of the date and time of the hearing on the NTA is administratively feasible.)

Breyer asked for the reasons why the government had stopped trying to include hearing dates in the NTA. Liu gave three: The former system was not allocating workload fairly among judges, was not capable of prioritizing cases and was reliant on a limited-access system. Breyer was “rather dubious” about the persuasiveness of the first reason, and asked “where [the other two] reasons appear,” because he was otherwise “incapable of evaluating them.” “In what document,” he asked, “shall I read the reasons that the BIA or whatever these organizations were, why did they change the old system …?” Liu could point to “no document.” Breyer later returned to this point to say that he did not intend to be “mean,” but wanted to get at the problem of “how much of a reason does an agency have to give” before the Supreme Court defers. Breyer referenced the 1935 case Panama Refining Co. v. Ryan, in which, in Breyer’s telling, the agency’s unpublished reasons for its interpretation were “discovered … in somebody’s desk at the Interior Deparment.” Liu said that past precedent suggested that there was sufficient information in the record here to justify deference to the agency’s interpretation of this statute, although again he cited no evidence to explain the agency’s changes in practice. During this exchange, Ginsburg pointed to a brief from a former immigration judge concluding that inclusion of the hearing date was feasible.

Near the end of the argument, Roberts threw Liu a lifeline by returning to the point that there was not much practical difference between having an NTA with no hearing date and one with a hearing date that is amended a few times. Roberts suggested that the former might be actually be better than the latter in terms of signaling to the immigrant the intent of the government.

When asked by Justice Anthony Kennedy how many NTAs omit the date and time of the hearing, Liu noted that “almost 100 percent” do. Near the end of his argument, Liu stressed that the better reading of the statute is to treat the cross-reference to Section 1229(a) as simply “identifying the type of document” that stops the clock. The required content of the document should be determined functionally, he suggested, rather than with reference to the text of the statute in Section 1229(a)(1).

Five justices seem skeptical of that claim. It is never possible to predict the outcome of any case with certainty. But one could come away from this argument thinking that Gorsuch’s reluctance to defer excessively to administrative agencies on questions of statutory interpretation could possibly combine forces with the liberal justices’ more general concerns about the government’s arguments to generate another 5-4 win for a noncitizen petitioner this term.

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